59.1 The defendant may not be liable if his breach of duty has only ‘caused’ the injury by placing the claimant in the wrong place at the wrong time.
Chester v. Afshar [2005] 1 AC 134 (HL)
“‘A factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury, unless the risk of the accident occurring at that time was greater.’ When a traveller was delayed through a railway company's fault and a lamp exploded in the hotel where she was compelled to spend the night (the well-known case of Central of Georgia Railway Co v Price (1898)) that was simply an unfortunate coincidence. Similarly, if a taxi-driver drives too fast and the cab is hit by a falling tree, injuring the passenger, it is sheer coincidence. The driver might equally well have avoided the tree by driving too fast, and the passenger might have been injured if the driver was observing the speed limit.”
per Lord Walker at para 94 59.2 However, that argument will be defeated when there is clear connection between the breach and the cause of the injury, though there may be something of a fine line between coincidence and causation.
Howell-Williams v. Richards Brothers, Lesley Wood [2008] EWCA Civ 1108
Emily Howell-Williams, aged 5, was being taken to a child-minder after school in a mini-bus operated by Richards. The bus stopped on the other side of the road from the child-minder’s house, and Emily and some other children got out and she ran across the road. She was struck by a car being driven by Lesley Wood.
The driver of the bus Mr. Rose, had been negligent in various ways: he had stopped the bus on the far side of the road (when the usual practice was to pull up to the house); he had not waited for the childminder, who was at the door, to cross over to collect the children; he had not kept the children on the bus although he could see Wood’s car approaching. Wood (who was travelling at 40 mph) was held to be negligent in not slowing down when approaching a stationary school bus. The defendants were held to be jointly liable, with 2/3 apportionment on the driver.
Woods appealed on the grounds that causation had not been established against her. She claimed that the situation of danger had been entirely created by Rose, and that even had she been travelling more slowly, she might still have hit Emily. The fact that she and Emily happened to be crossing the same spot at the same time was just an unfortunate coincidence, of the sort Lord Walker had said in Chester v. Afshar was legally irrelevant. HELD: This case was clearly distinguishable from the example given by Lord Walker, and she was liable as the trial judge had found.
“The contention that these matters are in some way legally irrelevant is in my view wholly without foundation. The fact that the accident would have been avoided had Mrs. Wood, in compliance with her duty of care, driven at a very much lower speed is legally relevant for the simple reason that the duty was to drive at a very much lower speed and the breach of duty lay in the failure to do so. The accident was plainly not the result of sheer coincidence of the kind referred to by Lord Walker in Chester v Afshar, but was causally related (and directly so related) to the breach of duty and the failure to slow down when Mrs. Wood should have done that is to say when she saw or should have seen the bus.” per Richards L.J. at para 31
59.3 AB v. Main [2015] EWHC 3183 (QB)
In a similar case to Howell-Williams v. Richards Brothers, Lesley Wood, a driver was held to be liable when she ran over a young boy who had been playing at the side of the road and ran into her path. Although she had not been speeding, she should have kept the child under proper observation and have either slowed down or sounded her horn in case he moved.
“I do accept that if the defendant had decided to take her foot off the accelerator, so as to reduce her speed to 25mph, to cover the brakes, to keep the boys under close observation and to move a little into the centre of the road, there would have been no need to sound the horn as well. That would have been unnecessary and a counsel of perfection. However I am satisfied that she needed to do one or the other, and that doing neither was negligent.
“I repeat that I am satisfied that to find the defendant negligent in these respects is not to impose the standard of an ideal driver, with the benefit of hindsight, upon the defendant. I entirely accept that she was driving at a reasonable speed as she approached the boys, that she was aware of them, and that she genuinely believed she was taking reasonable precautions. However I am satisfied that she made a series of errors of judgment, small in themselves, which individually and cumulatively can and should properly be categorised as amounting to negligence, in that: (a) she failed to appreciate the true extent of the risk posed by these young boys playing by the road as she approached them; (b) she failed to keep a close lookout on the boys as she came closer, thus failed to see or appreciate the claimant acting in a way which ought to have made her even more aware of the risk that he might do something foolish, including suddenly moving out into the road; (c) she failed to appreciate the real risk that even at the reasonable speed she was travelling, if the claimant did suddenly move out into the road in front of her she would have insufficient time to react, and move her foot from the accelerator to the brake and then come to a halt or to steer her car in some way so as to avoid a collision; (d) she failed to take the sensible precautions of covering her brakes so as to allow the car to reduce speed to 25mph and buy herself some more vital reaction time, whilst at the same time keeping the boys under closer observation and moving around 0.5m towards the centre of the road, or alternatively to sound her horn to ensure that the boys were aware of her presence.
“Was the defendant's negligence causative of the accident and/or the serious brain injuries sustained by the claimant?
“I remind myself of the importance of not making precise findings which are not warranted by the evidence, of not elevating the evidence as to running speeds and times, reaction times and stopping times into rigid mathematical formulae, and of the need to be satisfied that the claimant has discharged the burden of proof in relation to the reasonable range of potential scenarios.
“I am satisfied that the defendant, by failing to take her foot of the accelerator, failed to take the opportunity to reduce her speed from 30mph or just under to what I am satisfied would have been no more than 25mph at the point the claimant ran out in front of her.
“I am satisfied that the defendant, by failing to keep the claimant under close observation as she approached closer to him, failed to see him starting to move off towards the road. As a result she
swerve further to her right away from the claimant. Her failure to cover her brakes caused her to miss the benefit of some further vital saved action time at the point when she should have seen the claimant starting to move off towards the road. I am also satisfied that the defendant, by failing to move at least 0.5m to her right, caused her to miss the benefit of some further vital saved reaction and action time to act in the same way before the point at which the claimant came into the path of her car.
“Even though I cannot conclude that the effect of the above was that the collision would undoubtedly have been entirely avoided, I can be and am satisfied that the impact would have been at a speed of less than 20mph. I am therefore satisfied that the claimant would not have suffered the serious brain injury which he did in the collision if the defendant had not acted negligently.”
per Judge Stephen Davies paras 78–83